FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-50429
Plaintiff-Appellee, D.C. No.
v. 2:07-cr-00474-
PATRICK J. MITCHELL, AKA Pep, GAF-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
January 11, 2010—Pasadena, California
Filed October 20, 2010
Before: Alfred T. Goodwin, William C. Canby, Jr. and
Diarmuid F. O’Scannlain, Circuit Judges.
Opinion by Judge Goodwin;
Concurrence by Judge O’Scannlain
17303
17306 UNITED STATES v. MITCHELL
COUNSEL
Gary P. Burcham, Burcham & Zugman, San Diego, Califor-
nia, for the defendant-appellant.
Jean-Claude Andre, Assistant United States Attorney, Crimi-
nal Appeals Division, Los Angeles, California, for the
plaintiff-appellee.
OPINION
GOODWIN, Senior Circuit Judge:
Patrick J. Mitchell appeals his 180-month imprisonment
sentence as a career offender under § 4B1.1 of the United
States Sentencing Guidelines following his guilty plea to dis-
tributing 52.4 grams of crack cocaine, in violation of 21
U.S.C. § 841(a)(1), (b)(1)(A)(iii). We affirm and join other
circuits that have clarified that, even in cases where a defen-
dant is being sentenced under the Guidelines as a career
offender, the sentencing court may depart downward to
account for the disparity between treatment of crack cocaine
and powder cocaine in the Guidelines.
FACTUAL AND PROCEDURAL BACKGROUND
The Federal Bureau of Investigation (“FBI”) and the Los
Angeles Police Department had identified Mitchell as a mem-
ber of the Black P-Stone Bloods street gang and a supplier of
crack cocaine. On May 23, 2005, an FBI confidential infor-
mant purchased two ounces of crack cocaine from Mitchell
for $1,000. Forensic analysis showed that the plastic bag
Mitchell sold to the informant contained 52.4 grams of crack
cocaine.
Pursuant to a plea agreement, Mitchell pled guilty to a
single-count information charging him with distributing a
UNITED STATES v. MITCHELL 17307
mixture containing 52.4 grams of crack cocaine, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). This crime requires a
mandatory minimum of 10 years of imprisonment. Id.
§ 841(b)(1)(A)(iii). Because Mitchell pled guilty pre-
indictment, the government agreed not to use his prior felony
narcotics convictions to enhance his mandatory minimum
sentence under 21 U.S.C. §§ 802(44), 841, 851 and to recom-
mend that he be sentenced at the low end of the Sentencing
Guidelines range. Nonetheless, the parties acknowledged that
the crime to which Mitchell was pleading guilty was a felony
narcotics trafficking crime, and that his criminal history could
subject him to an enhanced Guidelines range as a career
offender.
Concluding that Mitchell had four predicate state felony
convictions, the Probation Office calculated his offense level
as a career offender under § 4B1.1(b) of the U.S. Sentencing
Guidelines. See U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 4B1.1(b) (2007) (amended May 1, 2008).1 Fol-
lowing objections to and revisions of Mitchell’s presentence
report (“PSR”), the district judge conducted a sentencing
hearing on September 22, 2008. The judge determined that
the four felony convictions all constituted predicates for
Mitchell’s career-offender status, although only two were
required. The judge then considered the 18 U.S.C. § 3553(a)
factors and concluded: “Mitchell’s record is lengthy. He has
had virtually no periods in his life that were truly crime free.”
Mitchell’s Sentencing Guidelines range was 262-327
months of imprisonment. Regarding the incarceration portion
of Mitchell’s sentence, the district judge explained that “the
1
Mitchell’s four prior state felony convictions were: (1) a 1989 convic-
tion for possession of cocaine for sale, in violation of Cal. Health & Safety
Code § 11351.5; (2) a 1991 conviction for first-degree burglary, in viola-
tion of Cal. Penal Code § 459; (3) a 1994 conviction for possession of a
weapon in jail, in violation of Cal. Penal Code § 4574(a); (4) a 1997 con-
viction for making a terrorist threat, in violation of Cal. Penal Code § 422.
17308 UNITED STATES v. MITCHELL
single most important variable in my exercise of discretion,
which is going to result in a sentence below the government’s
recommendation, is the crack powder differential.” Noting
that the disparity was “enormous” and “disproportionate,” the
judge determined that “it requires some exercise of discretion
and judgment, but there are limitations.” The judge stated that
Mitchell’s “lengthy serious criminal history,” including “vio-
lence,” “threats of violence,” and “drug dealing” necessitated
“protecting the public” and required “a substantial sentence.”
Although the statutory minimum was 10 years, 21 U.S.C.
§ 841(b)(1)(A), which Mitchell had requested, the judge
stated that a sentence of 120 months was “too great an adjust-
ment . . . the adjustment downward should [not] go that far.”
From the low end of Mitchell’s Sentencing Guidelines
range, 262 months, the judge departed downward 43 months
on the basis of the crack/powder cocaine disparity and cred-
ited Mitchell for 39 months served in state custody on a
related crime. Consequently, the district judge sentenced
Mitchell to 180 months of imprisonment, followed by 5 years
of supervised release, and ordered him to pay a $100 special
assessment. Mitchell is in custody serving his 180-month sen-
tence. He challenges his predicate state convictions that were
used to qualify him for career-offender status under the Sen-
tencing Guidelines and the district judge’s consideration of
the crack/powder disparity in his sentence.
DISCUSSION
I. Prior State Felony Convictions Qualifying as Predicates
for Sentencing Guidelines, Career-Offender Status
[1] We review de novo a district court’s “interpretation of
the Sentencing Guidelines and its determination that a defen-
dant qualifies as a career offender” under U.S.S.G. § 4B1.1.
United States v. Crawford, 520 F.3d 1072, 1077 (9th Cir.
2008). To qualify as a career offender, the defendant must be
(1) at least 18 at the time he committed the subject crime of
UNITED STATES v. MITCHELL 17309
conviction, which must be (2) “a felony that is either a crime
of violence or a controlled substance offense,” and (3) the
defendant must have “at least two prior felony convictions of
either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). Only the third requirement is at issue in
this appeal.
[2] Mitchell concedes that, under Rosales-Rosales v. Ash-
croft, 347 F.3d 714, 717-18 (9th Cir. 2003), his 1997 convic-
tion under Cal. Penal Code § 422 for making a terrorist threat
is a crime of violence. Appellant’s Br. at 15. Therefore,
Mitchell’s career-offender status is substantiated under the
Sentencing Guidelines as long as one of his three other prior
state convictions is an appropriate predicate.
[3] Mitchell’s 1994 conviction for possession of a weapon
in jail also is a crime of violence. United States v. Young, 990
F.2d 469 (9th Cir. 1993). Young held that “[i]n determining
whether an offense ‘involves conduct that presents a serious
potential risk of physical injury to another,’ U.S.S.G.
§ 4B1.2(1)(ii), courts may consider the statutory definition of
the crime and may also consider the conduct ‘expressly
charged[ ] in the count of which the defendant was con-
victed,’ U.S.S.G. § 4B1.2, comment. (n.2),” although either
component is sufficient. 990 F.2d at 472. Therefore, Young’s
possession of a shank in jail, in violation of Cal. Penal Code
§ 4574(a), created a viable risk that a person might be injured,
which made it a crime of violence under the statutory definition.2
Like the Young defendant, Mitchell violated § 4574(a) by pos-
2
The Young panel recognized:
Whether we confine our inquiry to the statutory definition of the
crime, the possession of a deadly weapon in jail, or consider the
specific conduct charged, the possession of a ‘shank’ in jail, our
conclusion is the same. In a prison setting, the possession by an
inmate of a deadly weapon indeed presents a serious potential of
physical injury to another.
990 F.2d at 472.
17310 UNITED STATES v. MITCHELL
sessing a shank in jail, which was a qualifying predicate con-
viction.
[4] Mitchell’s 1989 conviction for possession of cocaine
for sale, in violation of Cal. Health & Safety Code § 11351.5,
is a controlled-substance crime. This court has held that
[a] prior conviction under § 11351.5 categorically
constitutes a controlled substance offense for the
purposes of § 4B1.1 because (1) it is an offense
under state law, (2) that is punishable by imprison-
ment for a term exceeding one year, and (3) that pro-
hibits the distribution or dispensing of a controlled
substance or the possession of a controlled substance
with intent to distribute or dispense.
United States v. Charles, 581 F.3d 927, 934 (9th Cir. 2009).
This state controlled-substance felony was an additional qual-
ifying predicate conviction.
[5] Mitchell “d[id] not challenge” the Probation Office’s
determination that his 1991 prior conviction for first-degree
burglary under Cal. Penal Code § 459 “qualifies as a career
offender predicate.” The district judge determined Mitchell’s
1991 first-degree burglary conviction to be a career-offender
predicate because Mitchell “concedes the first-degree bur-
glary conviction does count.” Whether a conviction under
§ 459 is a crime of violence is a question currently pending
in this circuit.3 Because Mitchell had three other qualifying
predicate convictions, and the Guidelines require only two to
support his career-offender sentencing status, he properly
3
After Mitchell’s sentencing, this court held that conviction under § 459
of “first degree residential burglary is not a prior conviction of a crime of
violence” under the Guidelines. United States v. Aguila-Montes, 553 F.3d
1229, 1234 (9th Cir. 2009). Aquila-Montes, however, is being reconsid-
ered en banc and is no longer valid precedent in this circuit. 594 F.3d 1080
(9th Cir. 2010).
UNITED STATES v. MITCHELL 17311
could be sentenced as a career offender, which was recog-
nized in his plea agreement.
II. Consideration of the Crack/Powder Disparity on a
Career-Offender Sentence
Although Mitchell’s career-offender, Sentencing Guide-
lines range was 262-327 months of imprisonment, the district
judge departed downward from the low end by 43 months
because of his policy disagreement with the crack/powder
sentencing disparity. Until recently, some courts had held
that, even though judges were free to depart downward from
ordinary sentences to account for crack/powder sentencing
disparity, they could not do so when the defendant was being
sentenced as a career offender because Congress had man-
dated that career offender sentences should be “at or near the
maximum term,” 28 U.S.C. § 994(h). See, e.g., United States
v. Welton, 583 F.3d 494, 496 (7th Cir. 2009).
In line with such cases, the government originally argued
here that the district court had no power to depart downward
as it did. By subsequent letter, however, the government noted
that it had retreated from that position, with the consequence
that more recent cases had recognized the ability of sentenc-
ing courts to depart downward because of the crack/powder
disparity even in career-offender cases. See, e.g., United
States v. Corner, 598 F.3d 411 (7th Cir. 2009) (en banc). For
reasons that follow, we agree with Corner and uphold the
departure.
[6] In a sequential trilogy of relevant cases, the Supreme
Court has been consistent in explaining how sentencing
judges are to use the Sentencing Guidelines in formulating a
convicted defendant’s sentence. United States v. Booker, 543
U.S. 220, 245 (2005); Kimbrough v. United States, 552 U.S.
85 (2007); Spears v. United States, 129 S. Ct. 840, 843 (2009)
(per curiam). The Court has held that the Sentencing Guide-
lines are advisory and that sentencing judges may vary, pro-
17312 UNITED STATES v. MITCHELL
vided that they adhere to statutory requirements. Booker, 543
U.S. 220. Because the 100-to-1 crack/powder ratio in
U.S.S.G. § 2D1.1(c) was derived from 21 U.S.C. § 841, sen-
tencing judges considered this to be a statute-based require-
ment from which they could not deviate. The Court
subsequently instructed that sentencing judges may consider
a defendant’s individual circumstances, including whether the
crack/powder disparity “yields a sentence greater than neces-
sary to achieve § 3553(a)’s purposes, even in a mine-run case.”4
Kimbrough, 552 U.S. at 109 (internal quotation marks omit-
ted). Because the crack/powder ratio in the Sentencing Guide-
lines was the decision of the Sentencing Commission and not
Congress, Kimbrough permitted sentencing judges to tailor a
sentence under § 3553(a) according to their assessment of an
individual defendant. Id. at 102-04, 110; see also United
States v. Rodriguez, 527 F.3d 221, 231 (1st Cir. 2008) (recog-
nizing that “Kimbrough makes manifest that sentencing courts
possess sufficient discretion under section 3553(a) to consider
requests for variant sentences premised on disagreements with
the manner in which the sentencing guidelines operate”).
When application of Kimbrough resulted in sentencing
judges varying from the Sentencing Guidelines crack/powder
ratio only when use of that ratio rendered an inappropriate
sentence, the Supreme Court further clarified that “the point
of Kimbrough” was “a recognition of district courts’ authority
to vary from the crack cocaine Guidelines based on policy dis-
agreement with them, and not simply based on an individual-
ized determination that they yield an excessive sentence in a
particular case.” Spears v. United States, 129 S. Ct. 840, 843
(2009) (per curiam). Under the analyses of Kimbrough and
Spears, the reference in the career-offender Guidelines,
U.S.S.G. § 4B1.1, to 28 U.S.C. § 994(h) that sentences for
career offenders be “ ‘at or near’ the statutory maximum” is
4
The Sentencing Commission reduced the ratio in 2007 by Amendment
706. Amendments to the Sentencing Guidelines for United States Courts,
72 Fed.Reg. 28571-28572 (2007).
UNITED STATES v. MITCHELL 17313
a directive to the Sentencing Commission and not to sentenc-
ing courts, which are free to vary where appropriate in an
individual case. Kimbrough, 552 U.S. at 103 (quoting 28
U.S.C. § 994(h)).
[7] In Spears, the Court stressed that the crux of Kim-
brough is the recognition of “district courts’ authority to vary
from the crack cocaine Guidelines based on policy disagree-
ment with them, and not simply based on an individualized
determination that they yield an excessive sentence in a par-
ticular case.” 129 S. Ct. at 843. That is, the crack/powder
Guidelines and the career-offender Guideline, like all other
Guidelines, are advisory and Guidelines with which a sen-
tencing judge is empowered to disagree, when the circum-
stances in an individual case warrant. Acceding to the Court’s
confirmation of the advisory only use of the Sentencing
Guidelines, the circuits that recently have addressed the
crack/powder differential in sentencing a career offender have
concluded that “district judges are at liberty to reject any
Guideline on policy grounds—though they must act reason-
ably when using that power.” United States v. Corner, 598
F.3d 411, 415 (7th Cir. 2010) (en banc) (vacating sentence in
crack/powder disparity, career-offender case and overruling
prior precedent); see United States v. Michael, 576 F.3d 323,
327-28 (6th Cir. 2009); United States v. Boardman, 528 F.3d
86, 87-88 (1st Cir. 2008); United States v. Sanchez, 517 F.3d
651, 664-65 (2d Cir. 2008).5 We agree with this analysis and
now follow it in this circuit.
5
See also United States v. Vasquez, 558 F.3d 1224 (11th Cir. 2009),
vacated 130 S. Ct. 1135 (2010) (remanding for reconsideration “in light
of the position asserted by the Solicitor General in her brief for the United
States filed on November 16, 2009,” which rejects the premise that a sen-
tencing judge lacks authority to deviate from the advisory Sentencing
Guidelines range when crack/powder disparity is involved in sentencing
a career offender). As Chief Judge Easterbrook states in Corner, in vacat-
ing Vasquez for reconsideration under the analysis advanced by the Solici-
tor General, the Supreme Court unanimously “indicates receptivity” to
those views sufficient to induce the Seventh Circuit to adopt them en banc
and to overrule former precedent. 598 F.3d at 414.
17314 UNITED STATES v. MITCHELL
On appeal, we review a sentence for abuse of discretion as
to reasonableness. United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc). Our reasonableness review consists
of two parts: (1) procedural error and (2) substantive reason-
ableness. Id. There is no issue in this case regarding the cor-
rect calculation of Mitchell’s Guidelines sentence,
consideration of the § 3553(a) factors and the advisory nature
of the Guidelines, or failure to explain the sentence, which
would show procedural error. Id.
[8] Therefore, our review is solely for substantive reason-
ableness of Mitchell’s sentence. We consider the totality of
the circumstances, which includes the degree of variance from
the Guidelines sentencing range, and accord deference to the
sentencing judge’s decision that the § 3553(a) factors substan-
tiate departure from the Guidelines sentencing range. Id.
Reversal is not justified simply “because we think a different
sentence is appropriate.” Id.
We have determined that the sentencing judge correctly
decided that Mitchell was a career offender under the Guide-
lines with at least two qualifying predicate state felonies.
Mitchell contends that the sentencing judge should have elim-
inated the crack/powder disparity and sentenced him under
the 151-188-month range, as if he had sold 52.4 grams of
powder cocaine instead of crack.6 In exercising his sentencing
discretion, the judge specified that the most important vari-
able was the disproportionality of the crack/powder differen-
tial. The judge explained that the statutory minimum
requested by Mitchell of 10 years was an excessive downward
adjustment. Although Mitchell’s Guidelines sentencing range
6
Mitchell’s trafficking of 52.4 grams of crack cocaine resulted in a stat-
utory maximum of life imprisonment with a corresponding career-
offender, base-offense level of 37. 21 U.S.C. § 841(b)(1)(A)(iii); U.S.S.G.
§ 4B1.1(b)(A). If he had trafficked 52.4 grams of powder cocaine, then his
statutory maximum would have been 20 years of imprisonment with a
career-offender, base-offense level of 32. 21 U.S.C. § 841(b)(1)(B)(iii);
U.S.S.G. § 4B1.1(b)(C).
UNITED STATES v. MITCHELL 17315
was 262-327 months of imprisonment, the judge used the
lower end and the § 3553(a) factors to adjust Mitchell’s sen-
tence downward to 180 months, including credit for his 39-
month state imprisonment term in a related case.
[9] In sentencing Mitchell, the judge explained his dis-
agreement with the Sentencing Commission’s underlying pol-
icy decision of incorporating the crack/powder disparity in the
Sentencing Guidelines and allowed for it in departing down-
ward in Mitchell’s sentence. The judge similarly disagreed
with the Sentencing Commission’s Guideline that a career
offender’s sentence must be at or near the statutory maximum
sentence pursuant to 28 U.S.C. § 994(h). As the Supreme
Court through Booker, Kimbrough, and Spears has instructed,
and as other circuits that have confronted the crack/powder
variance in the sentence of a career offender have accepted
and clarified in their circuit law, sentencing judges can reject
any Sentencing Guideline, provided that the sentence imposed
is reasonable. “No judge is required to sentence at a variance
with a Guideline, but every judge is at liberty to do so.” Cor-
ner, 598 F.3d at 416. Because the sentencing judge carefully
considered and explained his downward adjustment of Mitch-
ell’s imprisonment term to account for the crack/powder dif-
ferential, even though Mitchell was a serial offender, the
judge was entitled to disagree with the policy behind the advi-
sory Sentencing Guidelines and did not abuse his discretion
in sentencing Mitchell.
CONCLUSION
Mitchell has appealed his 180-month sentence for pleading
guilty to distributing 52.4 grams of crack cocaine, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), as a career offender.
The sentencing judge appropriately explained the downward
departure in Mitchell’s Guidelines sentencing range because
of his disagreement with the crack/powder disparity, despite
Mitchell’s being a career offender. We AFFIRM.
17316 UNITED STATES v. MITCHELL
O’SCANNLAIN, Circuit Judge, concurring:
I join the court’s opinion in full. I write separately only to
emphasize that our decision does not determine the standard
of review applicable to a claim that a district court has varied
too greatly from the advisory Guidelines range sentence based
on a policy disagreement with the Sentencing Guidelines.
Although we review all sentencing decisions for abuse of
discretion, Gall v. United States, 552 U.S. 38, 41 (2007), the
Supreme Court has stated that “closer review may be in order
when the sentencing judge varies from the Guidelines based
solely on the judge’s view that the Guidelines range fails
properly to reflect [18 U.S.C.] § 3553(a) considerations even
in a mine-run case,” Kimbrough v. United States, 552 U.S. 85,
109 (2007). The Court has not resolved the precise nature of
this “closer review,” and the circuits have avoided staking out
clear positions on this matter. See, e.g., United States v.
Engle, 592 F.3d 495, 502-03 (4th Cir. 2010) (remanding for
the district court to develop a more complete record to permit
such “closer review” of its decision on appeal).
We have not yet had occasion to assess the nature of this
“closer review,” and we have not done so here. Although such
review may be appropriate where a party claims that a district
court has imposed a sentence that varied too greatly from an
advisory Guidelines range sentence, this appeal presents no
such claim. The government did not bring a cross-appeal to
challenge Mitchell’s below Guidelines range sentence as sub-
stantively unreasonable. Our opinion thus considers only
Mitchell’s claim that his sentence was substantively unreason-
able because the district court failed to eliminate entirely the
crack/powder disparity, and does not consider what standard
of review might have applied had the government challenged
the substantive reasonableness of Mitchell’s sentence.